Ganga Prasad vs Kailash Vishwakarma
2023 Latest Caselaw 7 MP

                               1
     IN THE HIGH COURT OF MADHYA PRADESH
                  AT JABALPUR
                         BEFORE
      HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                   ON THE 2 nd OF JANUARY, 2023
                 SECOND APPEAL No. 1381 of 2020

BETWEEN:-
GANGA PRASAD S/O PREM NARAYAN VISHWAKARMA,
AGED ABOUT 65 YEARS, OCCUPATION: CULTIVATION,
R/O VILLAGE MAHARAJPUR, TEHSIL DEORI, DISTRICT
SAGAR (MADHYA PRADESH)

                                                          .....APPELLANT
(BY SHRI H.S. RUPRAH - SENIOR ADVOCATE WITH SHRI UMA SHANKAR
TIWARI - ADVOCATE)

AND
1.    KAILASH VISHWAKARMA S/O PREM NARAYAN
      VISHWAKARMA, AGED ABOUT 76 YEARS, R/O
      VILLAGE    MAHARAJPUR,   TEHSIL DEORI,
      DISTRICT SAGAR (MADHYA PRADESH)

2.    POOJA JAIN D/O SANJAY JAIN, AGED ABOUT 24
      YEARS R/O VILLAGE MAHARAJPUR, TEHSIL
      DEORI, DISTRICT SAGAR (MADHYA PRADESH),

3.    STATE OF MADHYA PRADESH, THROUGH
      COLLECTOR, DISTRICT SAGAR, SAGAR (MADHYA
      PRADESH)

4.    ASHISH KUMAR @ SANT KUMAR S/O KOUSHAL
      KISHORE, AGED ABOUT 45 YEARS, OCCUPATION:
      CULTIVATION, R/O VILLAGE MAHARAJPUR,
      TEHSIL DEORI, DISTRICT SAGAR (MADHYA
      PRADESH)

                                                       .....RESPONDENTS
(BY SHRI R. MATHAI - PANEL LAWYER)

      This appeal coming on for admission this day, th e court passed the
following:
                                ORDER

This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 08.09.2020 passed by Additional District Judge to the Court of Additional District Judge, Deori, District Sagar in RCA No.20/2019 arising out of judgment and decree dated 14.10.2019 passed by Civil Judge, Class-II Deori, District Sagar in Regular Civil Suit No.124A/2015 by which the suit filed by the appellant, for declaration of partition as null and void, for declaration of sale deed as null and void, for correction in map as well as for permanent injunction has been dismissed.

The case of the appellant is that, Prem Narayan was the owner of land bearing khasra no.100, 101 (new no.116, 198 total area 3.157 and 1.955

hectares). Prem Narayan had three sons namely the appellant/plaintiff, Kanchedi and Kailash. He executed a registered Will on 19.07.1985 by bequeathing his property to his wife Maharani and sons Kanchedi, Kailash and Gangaprasad (appellant). It was agreed that after the death of Maharani, the appellant/plaintiff would get her share also so that he can have an easy excess to his land. After the death of Maharani, the defendants No.1 & 2 got their names mutated in a clandestine manner alongwith the plaintiff and when an objection was raised by the plaintiff, then the same was turned down by the defendant No.1 & 2 by alleging that the plaintiff may do whatever he wants. Defendants No.1 & 2 have got 1.262 hectares of land, whereas the plaintiff got only 1.06 hectares and defendants No.1 & 2 have also taken the land which had fallen to the share of Maharani and got the property partitioned in an unequal manner. It was alleged that since the plaintiff and the defendants No.1 & 2 are the legal heirs of Prem Narayan, therefore, all of them are entitled for 1.70 hectares of land and thus, the unequal partition of the land is liable to be declared as null and void. It was further alleged that late Prem Narayan had also mentioned in the Will that before

selling the property in dispute, an offer shall be made to the co-sharer and co- sharer will have a right of preemption. In spite of the request made by the plaintiff, the defendant No.2 had sold a part of the land which had fallen to the share of Maharani by registered sale deed dated 27.02.2012 to defendant No.3 and accordingly, the suit was filed for declaration that the unequal partition of property be quashed as well as the sale deed dated 27.02.2012 executed by defendant No.2 in favour of defendant No.3 be declared as null and void and an equal partition may be done and the possession of the said land be given accordingly. During the pendency of the civil suit, some part of land was further alienated to defendant No.5 Ashish.

The defendant No.1 filed his written statement and admitted the claim of the plaintiff.

The defendant No.2 also filed his written statement and admitted that the property in dispute is the self acquired property of their father late Prem Narayan. It was further alleged that late Prem Narayan had partitioned the property during his lifetime and accordingly, the names were mutated in the revenue records. After the death of Maharani the names of all the three co- sharers including the plaintiff were mutated and the said application was also signed by the plaintiff. The defendants have not taken the land which had fallen to the share of Maharani but their names were recorded as co-sharers. The

property has already been partitioned during the lifetime of the father of the parties and therefore, now the plaintiff is not entitled for repartition. It was denied that khasra Nos.198/4 and 198/3 have no excess but claimed that the said land is adjoining to the public way which is being used for the last 27 years for approaching the aforesaid land. It is denied that the plaintiff had ever

requested the defendant No.2 to sale the property to him. In fact no such offer was ever made. The defendant No.2 has sold the property to defendant No.3 after taking consent from the plaintiff and the defendant No.1. The name of the defendant No.3 has been recorded in the revenue records on the strength of the sale deed. The map was prepared after the death of their father which was based on the partition which took place during the lifetime of their father.

The defendant No.3 also filed her written statement and denied the plaint averments. Similarly defendant No.5 has also filed the written statement and denied the plaint averments.

The trial Court after recording the evidence dismissed the suit on the ground that the land was partitioned by Prem Narayan during his lifetime and therefore, the Will, if any, had loss its effect. It was also held that since the Will had come to an end in the light of subsequent partition, therefore, the plaintiff has no right of preemption. All the parties are in possession of the land which was given as per the partition.

Being aggrieved by the judgment and decree passed by the trial Court, the appellant preferred an appeal which too has been dismissed by the appellate Court by judgment and decree dated 08.09.2020 passed in RCA No.20/2019.

Challenging the judgment and decree passed by the Court below, the appellant has filed this appeal on the following proposed substantial questions of law:

"a. Whether, the finding that the entire Will dated 19.07.1985, Ex.P/1 has been nullified is perverse against the evidence and against the provisions of Indian Succession Act?

b. Whether, Ex.P/37 and Ex.P/38 in favour of respondent No.2 and 4 are validly executed without providing the preferential

right to the appellant in the absence of consent of the appellant?

c. Whether, the finding that the suit land is barred by limitation is a legal finding?"

It is submitted by the counsel for the appellant that the respondents have failed to prove that the property was subsequently partitioned by Prem Narayan. The appellant had a right of preference to purchase the property which was denied to him. Merely because the property was subsequently partitioned would not nullify the Will which was earlier executed by Prem Narayan.

Heard the learned counsel for the appellant.

The case of the appellant is primarily based on a Will dated 19.07.1985 whereas according to the plaintiff himself the property was partitioned subsequently but unequal shares were given. Even it is a case of the defendant No.2 that during the lifetime of Prem Narayan, the property was partitioned amongst three sons and wife of Prem Narayan. The Family partition, Ex.P/19 was signed by the appellant also. Once the property was partitioned during the lifetime of Prem Narayan, then as a natural consequence, the Will, if any, executed by Prem Narayan would automatically loose its effect because Will will always come into force after the death of testator. However, in the present case the property was already partitioned by Prem Narayan on 10.07.1990 by family partition Ex.P/19 during his lifetime. The civil suit was filed on 21.08.2012 i.e. after 22 years of partition. Both the Courts below have given a concurrent finding to the effect that the property was partitioned during the lifetime of Prem Narayan. The appellant has not clarified that under what circumstances, he had signed the partition deed.

The counsel for the appellant could not point out any perversity in the

said finding specifically in the light of paragraph five of his plaint. He has claimed that the partition is bad as unequal shares were given. Even in the relief clause, he has claimed that the partition be set aside. It is submitted by the counsel for the appellant that although in the registered Will there was no reference that after the death of Maharani the plaintiff would inherit her entire share but it was verbally agreed upon between the parties and therefore, the denial of the entire share of Maharani is bad in law.

Heard the learned counsel for the appellant.

So far as inheriting the entire land which had fallen to the share of Maharani is concerned, the same cannot be accepted for the following reasons:

(i) The will had already come to an end after the property was partitioned.

(ii) In view of Section 92 of Evidence Act, no oral evidence with regard to the contents of documents can be given except to claim that the document is a sham document.

The Supreme Court in the case of Placido Francisco Pinto (D) by LRs. and another Vs. Jose Francisco Pinto and another by judgment dated

30th September, 2021 passed in Civil Appeal No.1491/2007 had held as under:

"25. A reading of the aforesaid judgment would show that it was open to the plaintiff to assert that the document was never intended to be acted upon and the document is a sham. Such question arises when one party asserts that there has been a different transaction altogether than what is recorded in the document. It is for that purpose oral evidence is admissible.

26. In Roop Kumar, this Court was seized of an appeal filed by the defendant arising out of a suit for possession and for rendition of accounts.

The plaintiff claimed that he entered into an agency-cum-deed of license

with the appellant-defendant on 15.5.1975 and the terms of such agency- cum-licensing agreement was incorporated in an agreement dated 15.5.1975. The stand of the defendant was that he was in lawful possession as a tenant under the plaintiff. The trial court decreed the suit holding that the transaction between the respondent and the appellant evidenced by an agreement dated 15.5.1975 amounts to license and not subletting. The question before the High Court was whether a relationship between the parties is that of a licensor and licensee or that of a lessor and lessee. The first appeal was dismissed. This Court held that it is general and most inflexible rule that in respect of written instruments, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It was held that in Section 92 of the Evidence Act, the legislature has prevented oral evidence from being adduced for the purpose of varying the contract, such contract can be proved by production of such writing. It was held that Section 91 is concerned with the mode of proof of a document with limitation imposed by Section 92. If after the document has been produced to prove its terms under Section 91, provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding or subtracting from its terms. This Court held as under:

"17. It is likewise a general and most inflexible rule that wherever written instruments are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such

instruments are in their own nature and origin, entitled to a much higher degree of credit than oral evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence. (See Starkie on Evidence, p. 648.)

18. In Section 92 the legislature has prevented oral evidence being adduced for the purpose of varying the contract as between the parties to the contract; but, no such limitations are imposed under Section 91. Having regard to the jural position of Sections 91 and 92 and the deliberate omission from Section 91 of such words of limitation, it must be taken note of that even a third party if he wants to establish a particular contract between certain others, either when such contract has been reduced to in a document or where under the law such contract has to be in writing, can only prove such contract by the production of such writing.

xx xx xx

21. The grounds of exclusion of extrinsic evidence are:

(i) to admit inferior evidence when the law requires superior would amount to nullifying the law, and (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.

22. This Court in Gangabai v. Chhabubai [(1982) 1 SCC 4 : AIR 1982 SC 20] and Ishwar Dass Jain v. Sohan Lal [(2000) 1 SCC 434 : AIR 2000 SC 426] with reference to

Section 92(1) held that it is permissible to a party to a deed to contend that the deed was not intended to be acted upon, but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted. Oral evidence is admissible to show that document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties." (Emphasis Supplied)

27. A perusal of the above judgment would show that the oral evidence of a written agreement is excluded except when it is sought to be alleged the document as a sham transaction."

Even otherwise after the death of Maharani her every heir was entitled to have his share, therefore, the plaintiff cannot claim that he was entitled for the entire land which had fallen to the share of Maharani.

So far as the question of preferential right to purchase the land of the co- sharer is concerned, whether there is a such provision in Will or not will not make any difference provided that the petitioner succeeds in establishing his right of preemption. The appellant has failed to prove that he had ever offered any money to the defendant No.2 to purchase the property or had shown his willingness. On the contrary, in his examination-in-chief, he has stated that the land was sold to the defendant No.3 without informing him. Further, in the suit the appellant has not claimed the enforcement of his right of preemption.

On the contrary, the suit was filed for setting aside the partition as well as for afresh partition for equal share, as well as for setting aside the sale deed dated 27.02.2012 executed by defendant No.2 in favour of defendant No.3.

The sale of a part of land by defendant No.2 by registered sale deed dated 02.06.2014 in favour of defendant No.5 Ashish Kumar was also sought to be declared as null and void as well as permanent injunction was sought and a direction for fresh partition was claimed as well as for mutation of names in the revenue record accordingly. Since the appellant has not claimed the enforcement of his right of preemption, therefore, he cannot say that the sale deeds executed in favour of defendants No.3 and defendant No.5 are bad in law. Thus, all the proposed substantial questions of law are answered in negative.

As a consequence thereof, the judgment and decree dated 14.10.2019 passed by Civil Judge, Class-II Deori, District Sagar in RCA No.20/2019 and the judgment and decree dated 08.09.2020 passed by Additional District Judge to the Court of Additional District Judge, Deori, District Sagar in RCA No.20/2019 are hereby affirmed. As no substantial question of law arises in the present appeal, accordingly, it is dismissed in limine.

(G.S. AHLUWALIA) JUDGE vc

VARSHA Digitally signed by VARSHA CHOURASIYA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya

CHOUR Pradesh, 2.5.4.20=f460d4685ef5a4622238f0b59b78c 2407fd3ee2f619d9ce8e428c224c23ec8ac, pseudonym=4898159F2B2CE66588391B16 E9CF8981F5D6A897,

ASIYA serialNumber=A0506346908D8FDC4A2DA 9968A85B01E1D95EF7D163055356079862 6817C4267, cn=VARSHA CHOURASIYA Date: 2023.01.05 15:18:11 +05'30'